Board Returns to Totality of Circumstances Test for Determining Concerted Activity

You are subscribed to Press Releases for National Labor Relations Board. This information has recently been updated, and is now available. Board Returns to Totality of Circumstances Test for Determining Concerted Activity 08/31/2023 11:46 AM EDT August 31, 2023 Today, the National Labor Relations Board issued a decision in Miller Plastic Products, Inc. (decided on August 25th), returning to the long-established test for determining whether an employee who intends to induce group action by fellow employees engages in protected concerted activity under Section 7 of the National Labor Relations Act (the Act). In its decision, the Board reaffirmed the principle—originally announced in 1986 in Meyers Industries—that “the question of whether an employee has engaged in concerted activity is a factual one based on the totality of the record evidence.” The Board overruled Alstate Maintenance, LLC, (2019), which effectively narrowed the test for determining concerted activity. The Board explained that Alstate Maintenance had adopted an unduly restrictive test for defining concerted activity by introducing a mechanical checklist of factors in place of the Board’s traditional, fact-sensitive approach. This change imposed significant and unwarranted restrictions on concerted activity, undermining the goals of the Act. “The right of employees to engage in concerted activity to improve their working conditions is central to the National Labor Relations Act. The Board should not artificially constrain the definition of concerted activity, as the Alstate Maintenance decision did. By returning to the Board’s traditional approach, we better protect employees who seek to improve their working conditions,” said Chairman Lauren McFerran. Members Wilcox and Prouty joined Chairman McFerran in issuing the decision. Member Kaplan concurred in the result, agreeing that the employee engaged in protected concerted activity, but disagreed with the majority's decision to reach the holding in Alstate Maintenance.

Daily eBriefs - August 30, 2023

Employment Absent express words or positive indicia to the contrary, a governmental agency is not within the general words of a statute; a state university is not subject to Labor Code §2802 as that would infringe on the discretion the university enjoys under the Education Code to set its own equipment reimbursement policies. Krug v. Board of Trustees of the California State University - filed Aug. 29, 2023, Second District, Div. One Cite as 2023 S.O.S. 3219 Full text click here >http://sos.metnews.com/sos.cgi?0823//B320588

Board Revises Standard on Employers’ Duty to Bargain Before Changing Terms and Conditions of Work

Today, the NLRB issued two full-Board decisions, Wendt Corporation and Tecnocap, LLC, (both decided on August 26, 2023), addressing the statutory duty of employers to bargain with unions before making changes in terms and conditions of work. In Wendt, the Board overruled Raytheon Network Centric Systems (2017), which had given employers greater latitude to make unilateral changes affecting a unionized workforce during a contractual hiatus or during negotiations for a first contract. The Board explained that allowing employers to justify discretionary unilateral changes during such time periods as a “past practice” was both inconsistent with the Supreme Court’s decision in NLRB v. Katz, 369 U.S. 736 (1962) and undermined the pro-bargaining policies of the National Labor Relations Act. The Board in Wendt also reaffirmed the longstanding principle that an employer may never rely on an asserted past practice of making unilateral changes before employees were represented by a union (when the employer had no duty to bargain) to justify unilateral changes after the workers select a bargaining representative. In Tecnocap, the Board overruled a different aspect of Raytheon that had not been addressed in Wendt. The Board held that an employer’s past practice of unilateral changes that was developed under a management-rights clause in a collective-bargaining agreement cannot authorize unilateral changes made after the agreement expires and while bargaining for a new agreement is under way. The Board explained that the Raytheon holding harmed the collective-bargaining process in two ways: It forced unions to bargain to regain terms of employment lost to post-expiration unilateral changes, and it discouraged unions from agreeing to management-rights clauses in the first place. “Our decision today returns to a more faithful application of Supreme Court precedent. By protecting employees who have chosen a union representative from being subject to discretionary unilateral changes in their terms and conditions of employment without bargaining, the policy we announce today better promotes the collective-bargaining process that lies at the core of the National Labor Relations Act,” said Chairman Lauren McFerran. Members Wilcox and Prouty joined Chairman McFerran in issuing the decisions. In Wendt, Member Kaplan concurred in finding that the employer acted unlawfully but but did not agree with the majority’s decision to reach the validity of Raytheon upon remand. In Tecnocap, Member Kaplan dissented.

National Labor Relations Board Issues Final Rule to Restore Fair and Efficient Procedures for Union Elections

You are subscribed to Press Releases for National Labor Relations Board. This information has recently been updated, and is now available. National Labor Relations Board Issues Final Rule to Restore Fair and Efficient Procedures for Union Elections 08/24/2023 09:34 AM EDT August 24, 2023 The National Labor Relations Board today adopted a Final Rule amending its procedures governing representation elections. This Rule largely reverses the amendments made by the Board’s 2019 Election Rule, which introduced new delays in the election process. The new rule returns the Board’s key election procedures to those put in place by a 2014 rule that was adopted using a notice-and-comment process and that was uniformly upheld by federal courts. Last year, the United States Court of Appeals for the District of Columbia Circuit struck down parts of the 2019 Rule, and the Board has already rescinded those provisions. “It is a basic principle of the National Labor Relations Act that representation cases should be resolved quickly and fairly,” said Chairman Lauren McFerran. “By removing unnecessary delays from the election process, the new rule supports these important goals, and allows workers to more effectively exercise their fundamental rights.” The new rule will meaningfully reduce the time it takes to get from petition to election in contested elections and will expedite the resolution of any post-election litigation. Highlights of the new rule’s changes include: Allowing pre-election hearings to begin more quickly; Ensuring that important election information is disseminated to employees more quickly; Making pre- and post-election hearings more efficient; and Ensuring that elections are held more quickly. As with prior changes to the Board’s election processes, the new rule will become effective four months from the date of publication to ensure adequate time for the NLRB’s Regional offices to implement the new procedures. A companion rule also ensures that two provisions of the 2019 Rule that had been previously enjoined by a federal district court, but were scheduled to become effective on September 10, 2023, will not take effect. The new rule rescinds those provisions. The final rule was approved by Board Chairman Lauren McFerran and Members Gwynne A. Wilcox and David M. Prouty. Board Member Marvin E. Kaplan dissented. The rule will be published in the Federal Register on August 25, 2023 and will take effect on December 26, 2023.

Board Issues Decision Announcing New Framework for Union Representation Proceedings

You are subscribed to Press Releases for National Labor Relations Board. This information has recently been updated, and is now available. Board Issues Decision Announcing New Framework for Union Representation Proceedings 08/25/2023 10:06 AM EDT August 25, 2023 Today, the Board issued a decision in Cemex Construction Materials Pacific, LLC announcing a new framework for determining when employers are required to bargain with unions without a representation election. The new framework will both effectuate employees’ right to bargain through representatives of their own choosing and improve the fairness and integrity of Board-conducted elections. Under the new framework, when a union requests recognition on the basis that a majority of employees in an appropriate bargaining unit have designated the union as their representative, an employer must either recognize and bargain with the union or promptly file an RM petition seeking an election. However, if an employer who seeks an election commits any unfair labor practice that would require setting aside the election, the petition will be dismissed, and—rather than re-running the election—the Board will order the employer to recognize and bargain with the union. The Board explained that the revised framework represents an effort to better effectuate employees’ right to bargain through their chosen representative, while acknowledging that employers have the option to invoke the statutory provision allowing them to pursue a Board election. When employers pursue this option, the new standard will promote a fair election environment by more effectively disincentivizing employers from committing unfair labor practices. The new Cemex standard differs from the historical Joy Silk standard, which required an employer to bargain with a union unless it had a good-faith doubt of the union's majority status. “Today’s decision, along with the Board’s recently issued Final Rule on Representation, will strengthen the Board’s ability to provide workers across the country with a timely and fair process for seeking union representation,” said Chairman Lauren McFerran. “The Cemex decision reaffirms that elections are not the only appropriate path for seeking union representation, while also ensuring that, when elections take place, they occur in a fair election environment. Under Cemex, an employer is free to use the Board’s election procedure, but is never free to abuse it—it's as simple as that.” In Cemex, the Board found that the employer engaged in more than 20 instances of objectionable or unlawful misconduct during the critical period between the filing of the election petition and the election. Accordingly, the Board found that the employer was subject to a bargaining order under both the Supreme Court’s decision in NLRB v. Gissel Packing Co. and under the newly announced standard, applied retroactively in this case. Members Wilcox and Prouty joined Chairman McFerran in issuing the decision. Member Kaplan joined the majority in part and dissented in part.

Board Clarifies 2019 Decision on 'Wright Line' Burden

You are subscribed to Press Releases for National Labor Relations Board. This information has recently been updated, and is now available. Board Clarifies 2019 Decision on 'Wright Line' Burden 08/28/2023 03:18 PM EDT August 28, 2023 Today, the Board issued a decision in Intertape Polymer Corp. explaining that the Board’s 2019 decision in Tschiggfrie Properties, Ltd., did not add to or change the General Counsel’s burden under the longstanding Wright Line test. While the Tschiggfrie decision purported to “clarify” the Wright Line test, that clarification has caused unnecessary confusion and has, at times, been interpreted as modifying or heightening the General Counsel’s Wright Line burden. In Intertape, the Board reaffirmed that the General Counsel’s burden under Wright Line remains the same as it has been throughout decades of Board jurisprudence. Under Wright Line, the elements required to sustain the General Counsel’s initial burden are: (1) union or other protected activity by the employee; (2) employer knowledge of that activity; and (3) animus against union or other protected activity on the part of the employer. In Intertape, the Board reaffirmed that, in applying Wright Line, the Board looks to whether the evidence in the record as a whole supports a reasonable inference that protected activity was a motivating factor in a challenged employment action. With regard to the General Counsel’s burden to prove animus specifically, the decision clarifies that either direct or circumstantial evidence can support a finding of animus, and that there is no requirement that the demonstrated animus is specifically directed toward the employee’s own protected activity or even the particular employee against whom the employer has taken action. “The Wright Line standard is the Board’s foundational framework for assessing whether workers’ rights have been violated. It is important that the Board provide certainty to all parties about how the elements of this test are interpreted and applied,” said Chairman Lauren McFerran. “In Tschiggfrie, the Board unnecessarily tried to clarify the Wright Line standard, but ended up doing more harm than good. Because the decision has caused significant confusion for parties before the Board, we take this opportunity to make clear that this longstanding bedrock of Board law remains unchanged.” Members Wilcox and Prouty joined Chairman McFerran in issuing the decision. Member Kaplan dissented.

Robert N. Oddis Appointed as Assistant General Counsel of the Injunction Litigation Branch

Today, National Labor Relations Board General Counsel Jennifer A. Abruzzo announced the appointment of Robert N. Oddis as Assistant General Counsel of the Injunction Litigation Branch. In this position, Mr. Oddis will manage the Injunction Litigation Branch, which coordinates the initiation and litigation of injunction proceedings under Section 10(j) and 10(l) of the National Labor Relations Act. Mr. Oddis began his career at the NLRB as law clerk in Region 6-Pittsburgh in 1997. In 1999, he began serving as an attorney in the Division of Advice. He was promoted to supervisory attorney in the Regional Advice Branch in 2014. A native of Pittsburgh, Pennsylvania, Mr. Oddis graduated from the University of Pittsburgh and the University of Pittsburgh School of Law. “Rob is committed to strongly enforcing the Act and is an exceptionally talented attorney,” said General Counsel Jennifer Abruzzo. “Throughout the entirety of his career, he has dedicated his talents to vigorously enforcing the National Labor Relations Act in various roles at the Agency and I am confident he will continue to do so as he assumes his new role.”

Dawn L. Goldstein Appointed as Deputy Associate General Counsel of the Division of Legal Counsel

August 04, 2023 Today, National Labor Relations Board General Counsel Jennifer A. Abruzzo announced the appointment of Dawn L. Goldstein as Deputy Associate General Counsel of the Division of Legal Counsel. In this position, Ms. Goldstein will assist the Associate General Counsel in overseeing the NLRB’s Contempt, Compliance, and Special Litigation Branch (CCSLB), Freedom of Information Act (FOIA) Branch, the E-Litigation Branch, and Privacy Counsel. Ms. Goldstein has spent most of her career employed at the Board, beginning in 2000. For the previous two years, she has served as the CCSLB Branch Chief, after serving for five years as the CCSLB Deputy Branch Chief, and before that, was a supervisor and attorney in CCSLB and Special Litigation. Ms. Goldstein also spent five years at the Department of Energy’s Office of Hearings and Appeals. A native of North Miami, Florida, Ms. Goldstein graduated from the University of Florida in Gainesville with a B.A. in Political Science. She is a graduate cum laude of Boston University School of Law and is admitted to the Massachusetts Bar. “Dawn is an exceptionally talented attorney, who is committed to strong enforcement of the Act,” said General Counsel Jennifer Abruzzo. “Throughout her over twenty-year tenure, she has worked tirelessly in various roles at the Agency and will continue to serve us exceedingly well as she assumes her new role, helping to oversee the Division of Legal Counsel.”

Board Adopts New Standard for Assessing Lawfulness of Work Rules

August 02, 2023 Today, the NLRB issued a decision in Stericycle Inc., adopting a new legal standard for evaluating employer work rules challenged as facially unlawful under Section 8(a)(1) of the National Labor Relations Act. Today’s decision overrules Boeing Co. (2017), which was later refined in LA Specialty Produce Co. (2019). The new standard builds on and revises the Lutheran Heritage Village-Livonia (2004) standard. The Board had previously invited parties and amici to submit briefs addressing whether the Board should reconsider the Boeing standard. In Stericycle, Board explained that the primary problem with the Boeing and LA Specialty Produce standard was that it permitted employers to adopt overbroad work rules that chill employees’ exercise of their rights under Section 7 of the Act. Under that standard, an employer was not required to narrowly tailor its rules to promote its legitimate and substantial business interests without unnecessarily burdening employee rights. The Board also rejected Boeing’s categorical approach to work rules, under which certain types of rules were held to be always lawful, regardless of how they were drafted or what interests a particular employer cited in defense of the rule. Under the new standard adopted in Stericycle, the General Counsel must prove that a challenged rule has a reasonable tendency to chill employees from exercising their rights. If the General Counsel does so, then the rule is presumptively unlawful. However, the employer may rebut the presumption by proving that the rule advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule. If the employer proves its defense, then the work rule will be found lawful to maintain. In line with this framework, the Board rejected the categorical approach of Boeing in favor of case-specific consideration of work rules. “Boeing gave too little consideration to the chilling effect that work rules can have on workers’ Section 7 rights. Under the new standard, the Board will carefully consider both the potential impact of work rules on employees and the interests that employers articulate in support of their rules. By requiring employers to narrowly tailor their rules to serve those interests, the Board will better support the policies of the National Labor Relations Act,” said Chairman Lauren McFerran. Members Wilcox and Prouty joined Chairman McFerran in issuing the decision. Member Kaplan dissented.